225

14

Levinas Challenge to Abstract Law:
Politics as Totality and Religion as Motivation for
the Truly Just

KATE KIRKPATRICK
University of Oxford

ABSTRACT
This paper explores the tension between the ethical and the political in the
philosophy of Emmanuel Levinas, with a particular focus on the domain of
law. Some philosophers conclude that Levinas ethics constitute a critique of
politics. But in his later writings it is clear that he does not wish to reject polit-
ical rationality and its order. Rather, he criticizes the idea that only political
rationality can answer political problems.

KEYWORDS
politics, justice, law, proximity, face-to-face

INTRODUCTION
According to Emmanuel Levinas justice is premised upon a responsibili-
ty which is prior to language or philosophy or law. Given that (for Levinas at
least) we are all responsible for each other law is necessary in practical mat-
ters: we need some form of comparison, some order in our coexistence.
226 KATE KIRKPATRICK

Even though every other is incomparable some limitation or measurement
must be placed on the infinite demands of infinite others.
1

Levinas opus is often criticized in respect of politics. For what is the re-
lation between the ethical experience of the other (in Levinas terms the
face-to-face), and the traditional organization of society in the spheres of
rationality, law and justice, which legitimate the institutions of politics and
the rights of citizens? How can the particularity of each other be taken into
account in the rules we make (including laws) about what is acceptable hu-
man action? Critics like Derrida, Gillian Rose, and Habermas have questioned
whether Levinas notion of infinite responsibility to others could ever func-
tion in a political world characterized by both regulation and imperfection.
2

But the perceived discrepancy between Levinasian ethics and the prac-
tical domain of law and legal motivation which has led some to dismiss him
as irrelevant deserves to be challenged. Similarly, the view that religious
beliefs are somehow inapplicable to or incapable of informing secular society
must not be considered a fait accompli. If, as Susan Handelman writes, Levi-
nas work is an extraordinary ethical critique of philosophy a summon-
ing of philosophical reason in the sense that a summons is an urgent call or
order to a trial
3
then considering principles of jurisprudence in light of this
call to trial will provide new insights as well as a critical justification for the
application of Levinasian ethics. Furthermore, I will argue, the test-case of
legal motivation provides a basis on which to challenge any secular ideology
that considers religious insights to be too particular to be relevant to politi-
cal considerations. Levinas view, in dialogue with the legal positivist position
that law defines what is right and what is just, demonstrates that religious
arguments do have something to say in the political discussions of Western
societies today.





1
Emmanuel Levinas, Ethique et infini: Dialogues avec Philippe Nemo (Paris: Fayard 1982), 85.
2
Cf. Jrgen Habermas, The Philosophical Discourse of Modernity: Twelve Lectures, transl. Frede-
rick G. Lawrence (Cambridge, MA: MIT Press 1990), Gillian Rose, The Broken Middle: Out of Our Ancient
Society (Oxford: Blackwell 1992), and Jacques Derrida, Violence and Metaphysics: An Essay on the
Thought of Emmanuel Levinas in: idem, Writing and Difference, transl. Alan Bass (London: Routledge
1978 [1967]), 97-193.
3
Susan Handelman, Facing the Other: Levinas, Perelman and Rosenzweig, Religion & Literature,
22 (2/3), Religious Thought and Contemporary Critical Theory (SummerAutumn, 1990), 62.
LEVINAS CHALLENGE TO ABSTRACT LAW 227

1. LEVINAS: POLITICS, JUSTICE, AND THE FACE-TO-FACE
In Totality and Infinity, Levinas writes that Politics left to itself bears a
tyranny within itself.
4
For Levinas, totality can be constituted only by injus-
tice
5
: in politics, therefore, where there is totality injustice is structurally em-
bedded. Some philosophers conclude from this that Levinas ethics constitute
a critique of politics. But in his later writings it is clear that he does not wish
to reject political rationality and its order. Rather, he criticizes totality in the
idea that only political rationality can answer political problems. In Peace
and Proximity he proposes an alternative: the irreducible ethical responsibil-
ity of the face-to-face encounter should be the basis for the order of the State.
This encounter assumes that the face-to-face as in biblical imagery moti-
vates just acts. The foundation for ethical responsibility and the motivation
for legal action (as just) is therefore not in any totalizing Hellenic ideals,
not in the totality of state or nation, but in the relation to the other; and es-
pecially in the Hebrew biblical tradition. In Levinas, we find that both Athens
and Jerusalem must be progenitors for a polity to be truly just.
But how? There is a widespread view that Levinas does not do ethics in
the sense in which most philosophers comprehend the term. To take but one
example of this view, Critchley and Bernasconi write that Levinass works
cannot be said to provide us with what we normally think of as an ethics,
namely a theory of justice or an account of general rules, principles and pro-
cedures that would allow us to assess the acceptability of specific maxims or
judgments relating to social action, civic duty, or whatever.
6
In the growing
literature on Levinas we read again and again that his work is not an ethics
per se, but a radical rethinking of the question of the meaning of the ethi-
cal.
7
In a well-known interview with Philippe Nemo, Levinas declares that his
task does not consist in constructing an ethics; I only try to find its mean-
ing.
8
In this context, its meaning is the nature of responsibility and true jus-
tice.

4
Emmanuel Levinas, Totality and Infinity: An Essay on Exteriority (Dordrecht: Springer 1979),
300.
5
Emmanuel Levinas, Entre nous: on thinking-of-the-other, transl. Michael B. Smith and Barbara
Harshav (London: Athlone 2000), 27.
6
Simon Critchley and Robert Bernasconi, Introduction in The Cambridge Companion to Levinas
(Cambridge: Cambridge University Press 2002), 27.
7
Diane Perpich, The Ethics of Emmanuel Levinas (Stanford: Stanford University Press 2008), 125.
8
Emmanuel Levinas, Ethics and Infinity: Conversations with Philippe Nemo, trans. Richard A. Co-
hen (Pittsburgh: Duquesne University Press 1985), 90.
228 KATE KIRKPATRICK

In her recent The Ethics of Emmanuel Levinas, Diane Perpich argues that
Levinas gives a compelling account of why others needs, concerns, and very
lives are something which makes a claim on us and toward which we cannot
be wholly indifferent. As such, she argues, Levinas provides us with an ac-
count of normative force that is, how it is we become responsible for others
but, in her words, his is a normativity without norms. What his philoso-
phy cannot provide is a rule or algorithm by which to test and evaluate spe-
cific claims.
9

The infinite demand of the other, in Levinas, cannot be reduced to rule-
following. In the words of Lyotard: when the question of what justice con-
sists in is raised, the answer is: It remains to be seen in each case.
10
But how
can such an unwieldy and imprecise un-ethic have any bearing on law, a do-
main which is eminently practical and encased in definitions? In particular,
how does it relate to the domain of legal motivation?


2. REASON, LAW, AND INJUSTICE
In contemporary jurisprudence, law is widely considered to be a norma-
tive practice. Whether explicitly or implicitly, the common understanding
that it has the capacity to bear on what people ought to do indicates that it
does guide (at least some) human action. Reasons and our capacity to act on
them have long been considered central to normativity and to explaining
human action and the justice of law,
11
and one of reasons most appealing
traits in this context is a universal impartiality.
12
But in the practical outwork-
ings of reasons dictates, universal impartiality can impose, in Levinasian
terms, a totality that is unjust.
Such injustice poses particular problems in the arena of legal motiva-
tion. One prominent interpretation of the normative force of law is that of

9
Perpich, Ethics of Emmanuel Levinas, 126.
10
Jean-Francois Lyotard and Jean-Loup Thebaud, Just Gaming, trans. Wlad Godzich (Minneapo-
lis: University of Minnesota Press 1999), 99.
11
Aristotle equated the rule of law with the rule of reason; according Aquinas law is an ordi-
nance of reason, in that it appeals to the reason of its subjects; and for Kant, submission to laws in
civil community is the requirement of pure reason. For Aristotle, Politics, trans R. Robinson (Oxford:
Clarendon Press 1962), book III, ch. 16; Aquinas, Summa Theologica, trans. T. Gilby (Cambridge: Black-
friars 1966), q 90 a 4; Kant, On the Common Saying: This May Be True in Theory, but it does not Apply in
Practice, in H. S. Reiss (ed.), Kant: Political Writings (Cambridge: Cambridge University press 1991), 73
[8:290].
12
Though this Gods-eye view of reason has been criticized by philosophers like Bernard
Williams and Pamela Sue Anderson.
LEVINAS CHALLENGE TO ABSTRACT LAW 229

Joseph Raz,
13
according to whose pre-emption thesis the directives of a legal
authority generate reasons for action that exclude or pre-empt otherwise ap-
plicable reasons. In his words,
the fact that an authority requires performance of an action is a reason for its
performance which is not to be added to all other relevant reasons when as-
sessing what to do, but should exclude and take the place of some of them.
14

For example, suppose that Clare drives to work on a road with a speed limit
of 30mph. According to Razs thesis, Clare ought to treat this rule as a reason
not to exceed this speed and as a reason which pre-empts other reasons. If
Clare was running late to work, for example, the legal rule would pre-empt or
exclude this reason (or any other Clare might have) to speed.
15

Razs critics point out that there are counterexemplary circumstances in
which subjects would act for reasons which are allegedly excluded from con-
sideration on Razs model. They propose instead a view which has been
termed the single-order weighing model. On this view, legal directives do
not exclude otherwise applicable reasons, but rather provide reasons that
compete with others in terms of their motivational force, or weight.
16

To return to the example of Clare, let us say that she is an on-call sur-
geon driving in for an emergency shift. A patient is on the brink of death and
every minute she gains by speeding to the hospital could make a difference. It
is midnight and the road is clear; it is an unpopulated area. Where Razs ac-
count would exclude such reasons from her deliberations, according to the
single-order weighing model these reasons are admissible to Clares decision-
making about whether or not to follow the law. According to this model our
conduct, as subjects of the law, should be decided on the balance of reasons
applicable to the situation at hand with one important caveat: when the
conduct we contemplate has been prescribed or proscribed by law, relevant

13
For the role of reasons in the philosophy of normativity, see Joseph Raz, Engaging Reason (Oxford:
Oxford University Press 1999), 67.
14
Raz, The Morality of Freedom (Oxford: Clarendon Press 1986), 46.
15
Raz is clear that his notion of pre-emption or exclusion is intended to capture not merely the
way subjects should regard authoritative directives, but the way they do. This is most clearly explained in
his Practical Reason and Norms (Oxford: Oxford University Press 1999).
16
For critiques of the pre-emption thesis and the notion of exclusion, see for example D. S.
Clarke, Exclusionary Reasons, Mind 86 (1977), 252; R.E. Flathman, The Practice of Political Authority:
Authority and the Authoritative (Chicago: Chicago University Press, 1980), 109125; C. Gans, Mandatory
Rules and Exclusionary Reasons, Philosophia 15 (1986), 373; M. S. Moore, Authority, Law, and Razian
Reasons, Southern California Law Review, 62 (1989), 827; R. M. Dworkin, Thirty Years On, Harvard Law
Review 115 (2002), 1655, 16711672.
230 KATE KIRKPATRICK

reasons must include not only reasons for and against that conduct per se but
also some law-related reasons.
That is, when faced with an applicable legal directive we may have rea-
sons to act as the directive requires that emanate not (or not directly) from
the content of the directive, but rather from certain qualities of our law-
making institutions and procedures or from other attributes unique to law
(and, in this limited sense, such reasons are content-independent,
17
to use
Harts and Razs terminology). So Clare must consider not only the risks as-
sociated with following the law or not following it, but the source of the law
itself. And in the process she may find herself stuck between what she knows
to be legal and what she believes to be right.
Recent theorists have concluded that neither of these competing mod-
els, ultimately, is ethically satisfying the pre-emption thesis is particularly
vulnerable to counterexamples, where subjects of the law should disobey a
legal directive for moral reasons that are, in fact, allegedly excluded from the
subjects reasoning, or at least indistinguishable from reasons which are. By
contrast, as we have seen, the single-order weighing model can accommodate
cases of justified disobedience. However, it does not correspond to important
phenomenological features of our attitudes towards legal authority, and it
does not provide a normative framework within which law effectively func-
tions as a guide to right conduct.
18
In short, whichever approach is taken, we
are still left with scenarios where what is legal and what is right do not co-
incide.
For Levinas, in situations of this kind the law is totalizing. It undermines
not only the ethical responsibility of the actor, but moreover her subjectivity,
which is derived from the principle upon which justice should be based: the
asymmetrical ethical concern for the other. Asymmetrical responsibility not
only motivates justice, but is integral to subjectivity.
Levinas challenge to what I have called abstract law might be seen as
one application of his broader attack on a certain European philosophical
tradition for its indifference to the specifically ethical. To explain, after the
Second World War Levinas focus shifted from criticizing certain elements of
twentieth-century thought to criticizing the totalizing pretense of the
Western tradition beginning with Plato, that is, the presumption that phi-

17
H. L. A. Hart, Essays on Bentham (Oxford: Oxford University Press 1982), 254255; Raz, The
Morality of Freedom, 3537; J. Raz, Reasoning with Rules, Current Legal Problems 54 (2001), 1, 815.
18
Noam Gur, Legal Directives in the Realm of Practical Reason: A Challenge to the Pre-emption
Thesis, The American Journal of Jurisprudence 52 (2007).
LEVINAS CHALLENGE TO ABSTRACT LAW 231

losophy can unify everything in one synchronic whole. Certain philosophers,
he charges, uncritically rely on vast concepts such as Hegels Spirit or Hei-
deggers Being, which assimilate individuals into rational processes and
thereby negate their individuality. Abstract law, which attempts to systema-
tize justice, is equally guilty of totalizing of leaving the realm of the face-to-
face encounter in which we interact with persons who are different from
ourselves and where Levinas sense of the ethical which motivates true jus-
tice is found.
It is understandable, in view of this, that some interpret Levinas project
as undermining any kind of legal motivation at all, where justice systems are
involved. But what if the content-independent reasons referred to above
that is, the qualities of our law-making institutions and procedures were
not totalizing but rather more particular, and therefore had greater motiva-
tional force? If laws were not so susceptible to injustice, wouldnt subjects be
more inclined to adhere to them?


3. THE MOTIVATION OF PARTICULARITY
One does not have to enter imaginary realms to find Levinasian con-
cepts at work in law. A concrete example can be found in the domain of torts.
In the common law of negligence, operative in the UK and several common-
wealth countries amongst others, one finds a peculiar obligation called the
duty of care. The duty of care is not the outcome of a contract or self-
interested agreement. Rather, it may be considered the formalization of the
social contract, the implicit responsibility held by each member of society to
its other members.
19
According to the duty of care (and its inverse, negli-
gence), responsibility is not a quid pro quo, but rather it is asymmetrical, re-
quiring us to listen to others precisely in so far as their interests diverge from
our own.
20
It enables us to balance the contradictory demands of responsi-
bility. The law does this by moving from an absolute language or Yes or No,
with which we determine those for whom we are responsible, to a language

19
The leading judicial test for a duty of care in the UK is found in the judgments of Caparo Indus-
tries plc v Dickman, in which the House of Lords set out the following three-part test:
Harm must be a reasonably foreseeable result of the defendants conduct;
A relationship of proximity between the defendant and the claimant;
It must be fair, just and reasonable to impose liability.
20
Desmond Manderson, Proximity and the Ethics of Law, UNSW Law Journal, 28(3), 697.
232 KATE KIRKPATRICK

of reasonableness, with which we determine whether or not we have fulfilled
our responsibility.
Implicit in the term reasonableness, of course, is the idea of a social
judgment. As Stephen Clark writes in response to Michael Moxter, instru-
mental reasoning must always depend on our grasp of what is intrinsically,
not instrumentally, good.
21
The social judgment that reasonableness in-
volves implies that law, in this context, balances our own actions (or possible
actions) against our other obligations, expectations, and demands.
The language of torts thus reflects the theme Levinas two main works,
Totality and Infinity and Otherwise than Being, in offering a reconstruction of
human selfhood [agency?] based not on identity and ego but rather on an
ethics of the other which is characterized by asymmetrical responsibility to
the other. Part of this responsibility, for Levinas and for tort law, is derived
from our proximity to others. This proximity is not, for Levinas, a relation-
ship that can be reduced to any modality of distance or geometrical contigui-
ty.
22
It occurs before language, before philosophy, before justice. When rea-
sonableness is used in the context of negligence cases, it is a question of ba-
lancing the needs of the injured against our own desires and those of the
third party: that is, society, other others.
This may answer part of Derridas critique of Levinas. We live in socie-
ties in which needs inevitably clash, budgets and resources are limited, and
more help is needed (it seems) than could ever be given. Derridas question
was: What happens to asymmetrical responsibility then?
I cannot respond to the call, the request, the obligation, or even the love of
another, he writes, without sacrificing the other other, the other others I am
responsible to any one (that is to say to any other) only by failing in my re-
sponsibility to all the others, to the ethical or political generality. And I can
never justify this sacrifice.
23

The entry of law which in Derridas view reduced the ethical demand
to a legal formula, a hierarchy of rules and norms and arbitrary equations
might indeed appear to herald the demise of ethics. But Levinas remarks on
the entry of the third person indicate otherwise. The arrival of the third per-
son the domain of politics in law is the moment at which, in Levinas

21
Stephen Clark, Religion and Law: Response in Religion and the Public Sphere, this volume, 67.
22
Levinas, Otherwise than Being, trans. Alphonso Lingis (The Hague: Martinus Nijhoff 1981),
1001. For more on the role of proximity in tort law, see D. Manderson, Proximity and the Ethics of Law.
23
Jacques Derrida, The Gift of Death, trans. David Wills (Chicago: Chicago University Press 1995),
68-70.
LEVINAS CHALLENGE TO ABSTRACT LAW 233

words, I am no longer infinitely responsible for the other, and consequently
no longer in an asymmetrical, unequal relation.
24
Justice arises from infinite
asymmetrical responsibility, and yet it is lived in limited, finite responsibility.
Legal rules do not only restrict our conduct but also preserve our liberty.
Just as Levinas ethics has been criticized for vagueness, in one duty of
care case proximity was criticized in the Australian High Court as a legal
rule without specific content, resistant to precise definition and therefore
inadequate as a tool. Nonetheless, in the UK (and elsewhere), it is still one of
the three criteria for determining whether or not negligence has occurred.
The common law of negligence makes abundantly clear that we cannot simp-
ly consider law to be the application of rules, nor justice simply their effi-
cient enforcement. As Desmond Manderson argues, the responsibility that
Levinas defends is for each of us and for the law itself, a difficult freedom, a
jurisprudence for adults.
25
It requires us to give up a concept of law as rule-
fetishism and absolute obedience, of the kind which tends to obsess six-year-
olds, according to Piaget.
26
But this difficult freedom is also a freedom that
enables consciences to be at rest: for if justice and subjectivity are derived
from the same source, a politic which is based on that source would enable
its subjects to live with greater integrity.
Levinasian ethics certainly does not end the debates about legal motiva-
tion, but it does provide us with a new place to start. According to Levinas,
the ability to revisit and revise our articulations of responsibility enables
creative improvement of existing social norms and political structures:
The feeling that there is still violence evokes a search for a better justice. A
progressivism of justice belongs to this, as does the possibility of creating out
of my singularity something for the other. The relation of the one to the other
does not vanish in justice, but rather the I always hears the call to create some-
thing.
27

The abstractions of Raz and his critics fail to avoid the blind spot of in-
difference, to borrow a turn of phrase.
28
If justice is derived from asymmetry,
then the question of legal motivation is transformed: a productive antago-

24
Levinas, Otherwise than Being, 159.
25
See Emmanuel Levinas, A Religion for Adults in Difficult Freedom: Essays on Judaism, trans.
Sean Hand (Baltimore: Johns Hopkins University Press 1990), 1123, 1921.
26
Jean Piaget, The Moral Judgment of the Child (New York: Free Press 1997 [1932]).
27
Levinas, Is it Righteous to Be? Interviews with Emmanuel Levinas, ed. Jill Robbins (Stanford:
Stanford University Press 2001), 134.
28
See Michael Moxter, Religion and the Legal Sphere, this volume, 42.
234 KATE KIRKPATRICK

nism between law and ethics might enable actors to have more faith in the
law and its processes. Impartiality is not necessarily the crown that graces
Justices head; blindness is not necessarily the best means of preserving in-
sight. We need to recognize that while rules and absolutes are reassuring
(in a world where not just six-year-olds are discomfited by shades of grey)
we need a new way of seeing. And one such new way might be to think of
justice and the ethical as a passage from the universal-all to universal-
each.
29



4. RELIGION, SECULAR SOCIETY, AND THE JUST
So what does this have to do with religion? How can religion contribute
to understandings of justice in secular societies?
Stephen Clark criticizes the notion that the State or the law can gain au-
thority by agreeing with what we learn, or some of us learn, in churches or
other religious groupings, arguing that we learn how to socialize in schools,
clubs, colleges and work-places much more than in churches.
30
But the Levi-
nasian would point out that we learn in all encounters with the other
whether religious or not. So why should particular spheres of influence be
considered inadmissible to the body of evidence on which we base our socie-
ties structures? Is not the neutrality of the State itself a totalizing force?
Levinas, as we saw above, thought Athens could not establish a just pol-
ity without some foundations from Jerusalem. He claimed that Jewish textu-
ality contains hitherto unexplored philosophical insights which challenged
totality and enable truly human flourishing; that in addition to the hierarchy
taught by Athens, the slightly anarchical ethical individualism taught by Je-
rusalem [is] simultaneously necessary in order to repress violence.
31

This is not to say that only one must assent to a religion if one wishes to
be just, but rather to challenge the idea that particularity of religion is noth-
ing but threatening to the universality of law. Religious members of secular
societies such as Levinas do not always threaten the law by their particu-
larity but rather enable us to understand it, and our motivations for abiding
by it, in new ways. Levinas works are read by philosophers of many disposi-

29
Upendra Baxi, Judging Emmanuel Levinas? Some Reflections on Reading Levinas, Law, Poli-
tics, Modern Law Review 72(1) (2009), 121.
30
Stephen Clark, Religion and Law: Response, this volume, 65.
31
Levinas, Emmanuel Levinas: Basic Philosophical Writings, ed. A Peperzak, S. Critchley, and R.
Bernasconi (Bloomington: University of Indiana Press 1996), p. 24.
LEVINAS CHALLENGE TO ABSTRACT LAW 235

tions whether theist, atheist, or what have you and the burden of translat-
ing them into a public rationality is not undertaken solely by the religious.
Simon Critchley began his recent work Infinitely Demanding with the
hypothesis that there is a motivational deficit at the heart of secular liberal
democracy, which calls for a motivating, empowering conception of ethics
that can face and face down the drift of the present.
32
In Levinasian ethics of
the face-to-face we find a source of motivation that, though religious in ori-
gin, has advocates of many faiths or none. It may not command universal
assent, but as Wolterstorff has argued, the quest for a common set of political
principles with which all rational citizens concur is a misguided one, and un-
reasonable to expect. What is reasonable to expect is dissensus.
33
In a world
where religious reasons are not intrinsically private and inaccessible, and se-
cular reasons are not inherently available to all, learning how to attend to the
other, in Levinasian terms, is of unparalleled importance.

32
Simon Critchley, Infinitely Demanding (London: Verso 2007), 7, 8.
33
Audi and Wolterstorff, Religion in the Public Square (New York: Rowman & Littlefield 1997), 99.
236